Volume 2 — Wisconsin Reports

The appellant in this cause filed a hill in the Circuit Court of Green County, to foreclose a mortgage, executed hy the appellees, Joseph Willford and wife, which mortgage was given to secure payment of four promissory notes, amounting in all to the sum of $4000, hearing interest at twelve per cent. The mortgage was dated Juné 14, 1847, and the whole sum, hy the terms of the notes and mortgage, was to he paid hy the first day of June, 1851.

This cause was originally commenced in a Justice’s Court, by the plaintiff in error against the defendant in error, and judgment rendered for the plaintiff for damages and costs. The defendant sued out a writ of certiorari to the County Court of Rock county.

The statement of this case is fully given in Ihe opinion of the court, and it is not deemed necessary to repeat it. The plaintiff below should have filed his declaration and served a copy within ten days after the return of the writ of replevin. Lev. Stat. page 613. The statute provides for the trial of the cause at the first term, and in order that the cause may be ^01’ The time for declaring and serving a copy being fixed by statute, it must be strictly observed.

This was an action of assumpsit, commenced in the County Court of Rock county by the defendants in error against the plaintiff in error, to recover a balance due from bforval to Lutia Ann Rice, one of the defendants in error, for goods sold to him by her, before her marriage with James P. Rice, the other defendant. The declaration contained the usual counts for goods sold and delivered, money had and received,, and for an account stated.

This cause comes here by writ of error issued to the Rock County Court. The cause was originally commenced before a justice of the peace in said county, by the plaintiff in error against the defendant in error. .

This cause was originally commenced by the plaintiff in error, by a writ of attachment against Manchester & Wentworth, as principal debtors, and by garnishee process against the present defendant in error, George B. Sanderson. At the September term of said court, the plaintiff obtained judgment against Manchester & Wentworth for the sum of $8,539.11 damages, and costs.

This cause was commenced in the Rock County Court, upon a promissory note. The declaration was in the common counts, with a copy of the note endorsed thereon in conformity with the statute, accompanied with' the usual notice, «fee. The defendant, Cooper, in the court Below, made default.

This was an action to enforce a mechanic’s lien. ^e On the 15th day of April, A. D. 1852, the defendant in error filed his declaration in this cause, containing two counts ; in one of which counts it was set forth that the said plaintiff in error was indebted to said defendant in error for shingles, boards, scant-ling, joist, planks, timber and other materials, sold and delivered to said plaintiff in error for the purpose of being used by him in and about the construction of…

This was ail action of assumpsit upon a promissory note, brought in the Racine County Court by the defendants in error against the plaintiff in error. The statement of the case is presented in the opinion of the court. The judgment of the County Court was removed to this court by writ of error, and the following errors assigned : 1. No judgment interlocutory was entered in the court below. 2.

This was an action of trespass de bonis asporiatis, commenced by the present plaintiff in error against the defendant in error, before a justice of the peace. The-plea was the general issue, with notice of justification. The trial was had before the justice, who rendered judgment in favor of the plaintiff for the value of the property as proved.

This was an action of replevin brought in the court below, by the plaintiff in error against the defendant in error, to recover possession of certain personal property.

This suit was commenced in a justice’s court of Rock county, by the defendant in error, against the plaintiff in error, to. recover the sum of ten dollars and ninety cents, the amount of a tax alleged to have been levied on certain lands, and which the plaintiff in error, as town clerk, had neglected to insert in the proper assessment roll and warrant of collection.

The defendant in error brought this action against the plaintiff in error, Charles W. Turner, (deceased,) and Leonard Crocker, in the Kenosha Circuit Court. The declaration was in trespass for false imprisonment The defendants below, severally pleaded not guilty, and special pleas. At the November term, 1852, the cause came on to be tried, on the plea of not guilty.

, The plaintiffs in error commenced a suit, Before a justice of the peace, for the county of Walworth, against John Bushy, by attachment returnable on the 11th day of November, 1851. Bowers was summoned as Garnishee. On the return day of the attachment, the plaintiffs declared on a promissory note made by Busby, the defendant.

This cause was commenced in a justice’s court in the county of Rock, Tby the plaintiff in error against the qefencja;nys in err or. The plaintiff filed his declara-])efore the justice in writing, in a plea of trespass quare clausum fregit alleging matters in aggravation, and laying the locus in quo in the town of Harmony, in said county of Rock.

This was an action of assumpsit commenced in the County Court of Rock county, by the plaintiff in error against the defendant in error, by the filing* and service of a declaration.

This was an action of ejectment, commenced by tlie plaintiff in error against Tisdale & Tondro, to re-' cover a part of tlie southeast fractional quarter of fractional section 85, town one, range twelve, particularly described in tlie declaration as follows: being a building now occupied by defendants as a grocery, and the land on which it is situated, bounded on the west by a meat market occupied by Phillip Lovell ; and on the east side by a certain building recently…

The appellee in this cause filed a hill in the Circuit Court of Green county, to foreclose a mortgage executed by the appellants ; which mortgage was executed by Alvin Humphrey, and Sarah G.L. Humphrey, his wife, to John Sears, of Green county, and was given to secure the payment of a promissory note for the sum of three hundred dollars, bearing interest at twelve per cent.

This cause was brought into the Walworth County Court, by appeal from the judgment of a justice the peace of that county, and was tried at the Sep-ternber Term, 1852. ' The plaintiff below, now defendant in error, de: dared in tresspass, for taking and carrying away twenty hogs, and twenty pigs, the' proper+y of the plaintiff, of the value of $100.

This suit was commenced before a justice of the peace of Jefferson county, for damages occasioned by the accidental falling of a tree by the plaintiffs in error, upon the oxen belonging to the defendant in error.

This was a proceeding under Chapter 120, of the Revised Statutes, to enforce a mechanic’s lien. The defendant in error filed his petition in the County Court of Dane county, alleging and claiming that he. was employed by the plaintiffs in error, to do certain work and labor in and about the erection of a building to be used as an oil mill, on lot number one, of block number two hundred and sixty-one, in the village of Madison.

This was an action of assumpsit, brought by the defendant in error, against the plaintiff in error, in the Jefferson County Court, to enforce a mechanics’ lien against the premises occupied by the intestate in his lifetime, for materials furnished in the erection of a certain barn, and fence thereon.

TMs was an action of covenant, ■ brought by tlie tlie defendant in error, for a breach of the covenant of seizin contained in a deed executed by plaintiff in error to defendant in error. The declaration sets forth the execution of the deed, the consideration amounting to $25.00, the covenant, and the breach thereof, claiming $500 damages. The defendant, for a plea, .denies the execution of the deed, and admits all the other allegations of the declaration.

- This suit was originally commenced Before a justice of the peace of Dane county, by the defendant in error against the plaintiffs in error.

The plaintiff in error commenced an action of re-plevin in a justice’s court of Sank connty, against one 'William Chapman, to obtain the possession of one light bay horse, returnable- the 28th day of March, 1853. The writ was served and returned, and on the return day, the justice dismissed the suit for irregularity in the process, and ordered the property to be redelivered to Chapman.

mROB TO THE COLUMBIA CIRCUIT COURT. This is a proceeding under an act relating to mills and mill dams, approved January 13, 1840, and repealed January 1, 1850.

E¡RROR TO THE GRANT COUNTY COURT. The few facts in this case are stated fully and at large in the opinion of the court. submitted a written argument.

This was an appeal in equity from the Circuit Court of Sauk county. The complainant’s hill sets forth, that in the month of May, 1847, he, the complainant, purchased from the United States a certain tract of land, situate in the county of Sauk, and received from e register of the land office at Mineral Point, a duplicate therefor.

The defendant in error sued Kirkpatrick, Stiles and Crocker in assumpsit, by attachment on note, before a justice of the peace of Grant county, on the 20th of October, 1849. Kirkpatrick and Stiles applied for a change of venue, and the cause was transferred to another justice. Kirkpatrick and Stiles pleaded payment; Crocker did not appear or plead. November 3d, 1849, the justice rendered judgment against the defendants for $22.01.

This was an action of replevin, originally brought before a justice of tbe peace, by tbe defendant in error. Tbe justice decided that McKinney was entitled to tbe possession of tbe property, and rendered a judgment against Weizen for $11.69 costs. Eromtbis judgment tbe plaintiff in error appealed to tbe County Court. That court dismissed tbe appeal, declaring tbe judgment of tbe justice void, and rendered a judgment against tbe plaintiff in error, for costs.

<p>In an action of trespass <!e bonh axportath, if the defendant wishes to justify on the ground of a sale and transfer fraudulent as to creditors, he must first show his relation as creditor.</p> <p>A sale of goods made to hinder, delay, or defraud creditors, is void as to them, hut good between the parties, and creditors only can impeach it.</p> <p>A writ of fi. fa. is not of itself sufficient evidence of indebtedness.</p> <p>Where a person is appointed special deputy by the sheriff, to serve a particular writ, in an action against him it is necessrry for him to prove his special authority- Proof that he was acting as a public officer in that particular instance, is not sufficient.</p> <p>A party of record cannot be rendered a competent witness by an offer to indemnify him against the consequences of the suit.</p> <p>A merely nominal party is sometimes admitted as a witness, but only when it is obvious that he has no interest in the event of the suit, and when he is not liable for costs, or is released therefrom by the act of the party in interest, or by operation of statute.</p>

The appellees in this cause filed a bill in the Circuit Court of Sauk county, to foreclose a mortgage executed by Philarmon Pratt, one of the appellants, which mortgage was executed and delivered to one Greorge W. Brown, since deceased, and was given to secure the payment of seven promissory notes, amounting in the aggregate to the sum of $4,700 and interest.

This was an action of trespass on the case, commenced in the Circuit Court of Brown County, by the defendants in error against the plaintiff in error.

This was an action of trover, for a quantity of merchandise. The declaration was in the common form ; plea not guilty. The trial was had at the term of the Circuit Court for Milwaukee county, which resulted in a verdict against the plaintiff in error for $5,000 and costs.

Jason Downer filed Ms bill of complaint against James B. Cross in tifie Circuit Court for Milwaukee county, March. 8, 1850, being a bill of foreclosure in the usual form, stating that a part of the money secured Tby the mortgage was past due, and a part to Become due. On the Oth day of May, 1850, the court made the usual decree of foreclosure, except it appointed, in that decree, Leander Wyman a special commissioner to make sale of the mortgaged premises.

This was an action of assumpsit,. brought in the Circuit Court for Fond du Lac county, by the plaintiff* in error against the defendant in error. ■ On the 1st day of January, 1853, the plaintiff filed his declaration, containing a special count upon a receipt given by defendant to plaintiff, as a special deputy sheriff, and also containing the common money counts.

In June, 1853, the complainant hies his hill in the Circuit Court of Milwaukee county, setting forth that he is now, and has been for more than six years last past, the owner in fee simple, and in… Held: as late as 16 Ves. 216-219, “ there is no instance of holding it a nuisance, and therefore enjoining it, without a tried.” But in the more recent case of the Earl of Ripon vs. Hobart, (3 Mylne c& Keene, 169, reprinted in 8 Eng. Oh.

This is an. appeal from an order of the Circuit Court of Dane county, denying the petition of the defendants for a change of venue. The causes assigned for the change of venue were: 1. The prejudice of the judge. 2. That, the judge was interested in the suit. 3. That the judge had been of counsel for the complainant.

Thiá was an appeal from an order of the Circuit Court of Dane county, denying a motion made by the defendants to have the property in controversy consisting of mills, and other real estate, machinery, tools, implements, &c., restored to Cushing. At the commencement of the suit, the defendant Cushing was in possession under and by virtue of a trust deed, executed by the complainant and others to him.

This cause was taken by appeal from a final decree of the said Circuit Court made therein, to the Supreme Court, as stated in the preceding case ; when the decree of the Circuit Court was reversed at the December term, 1852.

• This was an action Brought before a justice of the peace of Calumet county by the plaintiff in error against the defendants in error, to recover a balance due on book account, where he obtained judgment, from which the defendants appealed to the County Court. On the first day of the next succeeding term the plaintiff in error filed in said court his petition for a change of venue, on account that the judge was prejudiced.

APPEAL, IÍÍ EQUITY FROM LAFAYETTE CIRCUIT COURT. This was a bill for specific performance, to compel the defendant to convey to the complainants two certain mineral lots therein described, and for an account of the rents and profits thereof. The case was brought to a bearing at the March term of the Circuit Court of Lafayette county, 1852, and was argued by counsel.

This suit is brought by the plaintiff to compel the treasurer of the State to receive the amount of interest due on the contract of purchase from the State of a section of land in the county of Bad Axe, being part of the 500,000 acre tract of the State of Wisconsin. This tract was appraised by the State appraiser at the sum of $36.80, being an average of 05:8 cents per acre.

<p>In all cases, the damage to be recovered must be the natural and proximate consequence of the act complained of. It must be a legal and natural, but not a remote consequence.</p>

The Ml filed in this case charges the defendants with trespass and waste upon a certain lot of land in the possession of the complainants as lessees, by digging and taking lead ore thereout, and converting the same to their own use. An injunction was prayed for and granted, and the defendant Boyle answered, denying the material charges of the hill.

This cause is brought to this court on an exception to the ruling of the circuit judge of Marquette county, in which a motion for a new trial was refused. The case is stated in the opinion of the court.

The complainants filed their bill in this cause on the third day of September, 18.49, and the defendants, being all non-residents, it was taken pro confesso, for the want of appearance.

This was an action of trover for the alleged wrongful conversion of the vessel called the “ Nucleus ” The plea was the general issue, with notice of special matter. The defendant below took and sold the vessel by virtue of diverse executions against Alanson Sweet, under whom the plaintiff below claimed title to the vessel. Several questions arose upon the trial of the cause below upon the ruling of the court, in regard to which exceptions were taken.

This was an action of trespass, brought by the defendant in error against the plaintiffs in error.

<p>Rnle 16 of the Circuit Court in relation to the tailing of inquests at the circuit, applies only to cases in which there is an issue of fact.</p> <p>An inquest taken at the circuit, where judgment has been entered by default, as for want of a plea upon notice, as prescribed by Rule 16, is irregular.</p> <p>Where the defendant has appeared in a cause, he will be entitled to notice, according to the provisions of Rule 13, of other proceedings.</p>

The defendant was indicted at the October terna of the Racine Circuit Court, for larceny. The indictment contains but one count, charging the defendant with having stolen “one hundred pounds of meat,” of the value of fifteen dollars. Plea of dé-fendant — not guilty.

<p>In replevin, under tlio general issue of non deUnet, tie defendant may give in evidence Ms own title to the property.</p> <p>In such ease, the plaintiff’s right to recover depends upon his own right to the possession of the property, and the unlawful detention thereof by the defendant.</p>

The bill in this cause was filed for a dissolution of co-partnership between the parties, and for an account, on the 24th day of January, 1853.

The statement of this case will he sufficiently ob-in the facts set forth in the opinion of the , COUl't. The return of the respondent states that at the April term of the Dane County Circuit Court, the solicitors of Cushing demanded of respondent a writ of assistance, which demand was in writing ; that respondent presented the same to Hon. Levi Hubbell, judge of said circuit, together with the eighth rule of chancery practice, and ashed of said judge for direction in the…

This was an action of assumpsit, brought upon a promissory note by the plaintiffs in error, as partners, against the defendant in error, as endorser of a promissory note, of which the following is a copy: “$219.76. “ Fond du Lac, November 6,1851. “On the first day of March next, I promise to “pay I. W. Bowen or order,.two hundred and “teen 76-100 dollars, value received. u ft T'hi'WnT-B' JVE VV OLE.

The statement and facts of this case are set forth in detail in the opinion of the court. I. The principle of “ equity of redemption ” exists only in connection with mortgages. 4 Kent. Oomm. 161; 12 Vésey, 59 ; 2 Moot, 333 ; 2 Story’s Eq. Jwris. 283-291.' The prayer of a Ibill to redeem, brought by a second mortgagee, should be to redeem the first mort- and this will not be allowed without making the first mortgagor a party. 12 Vesey, 59; 2 Hal-stead’s Oh.

This was an application for an alternative writ of mandamus, to he issued by this court, commanding the said respondent, as treasurer of the county of Ozaukee, to hold and keep his office of… Held: and did still hold, the office of the county treasurer of Ozaukee county, at the village of Port Washington, the county seat fixed by said act.

.APPEAL FROM THE OIROÜXT COURT OF RACINE COUNTY. The hill of complaint in this case states that on the 20th day of February, 1839, the complainant contract ed hy deed with Truman G. Wright and Gilbert Knapp for the purchase from them of three certain village lots in Racine, for the consideration of $500 paid at the time ; and thereby agreed further, with Wright and Knapp, to build a dwelling house of certain dimensions on one of the lots within a year, and a furnace on…